OpenJurist

407 US 493 Peters v. C P Kiff

407 U.S. 493

92 S.Ct. 2163

33 L.Ed.2d 83

Dean Rene PETERS, Petitioner,
v.
C. P. KIFF, Warden.

No. 71—5078.

Argued Feb. 22, 1972.

Decided June 22, 1972.

Syllabus

Petitioner contends in this habeas corpus proceeding that the
systematic exclusion of Negroes from the grand jury that indicted
him and the petit jury that convicted him deprived him of his
rights to due process and equal protection. The Court of Appeals
affirmed the District Court's denial of relied on the District
Court's denial of relief on Negro, suffered no unconstitutional
discrimination. Held: The judgment is reversed. Pp. 495—507.

5 Cir., 441 F.2d 370, reversed and remanded.

Mr. Justice MARSHALL, joined by Mr. Justice DOUGLAS and Mr.
Justice STEWART, concluded that:

1. Petitioner, under the circumstances of this case, has not
abandoned his challenge to the petit jury by failing to include it
in the list of questions presented by the writ of certiorari. Pp.
495—496.

2. A State cannot, consistent with due process, subject a
defendant to indictment by a grand jury or trial by a petit jury
that has been selected in an arbitrary and discriminatory manner
contrary to federal constitutional and statutory requirements, and
regardless of any showing of actual bias, petitioner had standing
to attack the systematic exclusion of Negroes from grand jury and
petit jury service. Pp. 496—505.

Mr. Justice WHITE, joined by Mr. Justice BRENNAN and Mr.
Justice POWELL, would implement the longstanding and strong policy
of 18 U.S.C. § 243 against excluding qualified jurors on account
of race by permitting petitioner to challenge his conviction on
the ground that Negroes were arbitrarily excluded from the grand
jury that indicted him. Hill v. Texas, 316 U.S. 400, 62 S.Ct.
1159, 86 L.Ed. 1559. P. 507.

1

Page 494

Edward T. M. Garland, Atlanta, Ga., for petitioner.

Dorothy T. Beasley, Atlanta, Ga., for respondent.

djQ Mr. Justice MARSHALL announced the judgment of the Court and
an opinion in which Mr. Justice DOUGLAS and Mr. Justice STEWART
join.

Petitioner alleges that Negroes were systematically excluded
from the grand jury that indicted him and the petit jury that
convicted him of burglary in the Superior Court of Muscogee
County, Georgia. In consequence he contends that his conviction is
invalid under the Due Process and Equal Protection Clauses of the
Fourteenth Amendment. Because he is not himself a Negro, the
respondent contends that he has not suffered any unconstitutional
discrimination, and that his conviction must stand. On that
ground, the Court of Appeals affirmed the denial of his petition
for federal habeas corpus. 441 F.2d 370 (CA5 1971).1 We granted
certiorari. 404 U.S. 964, 92 S.Ct. 341, 30 L.Ed.2d 284 (1971). We
reverse.

2

Page 495

I

At the outset, we reject the contention that the only issue
before this Court is petitioner's challenge to the composition of
the grand jury that indicted him. The respondent argues that the
challenge to the petit jury is not before us, because it fails to
appear in the list of questions presented by the petition for
certiorari. We do not regard that omission as controlling,
however, in light of the fact that the two claims have been
treated together at every stage of the proceedings below, they are
treated together in the body of the petition for certiorari, and
they are treated together in the brief filed by petitioner on the
merits in this Court. Petitioner cannot fairly be said to have
abandoned his challenge to the petit jury, and the State has had
ample opportunity to

Moreover, in this case the principles governing the two
claims are identical. First, it appears that the same selection
process was used for both the grand jury andrespond to that
challenge, having done so at length below.2

3

Page 496

the petit jury.3 Consequently, the question whether jurors were in
fact excluded on the basis of race will be answered the same way
for both tribunals. Second, both the grand jury and the petit jury
in this case must be measured solely by the general Fourteenth
Amendment guarantees of due process and equal protection, and not
by the specific constitutional provisions for the grand jury and
the petit jury. For the Fifth Amendment right to a grand jury does
not apply in a state prosecution. Hurtado v. California, 110 U.S.
516, 4 S.Ct. 111, 292, 28 L.Ed. 232 (1884). And the Sixth
Amendment right to a petit jury, made applicable to the States
through the Due Process Clause of the Fourteenth 391 U.S. 145,
194, 88 S.Ct. 1444, 20 391 U.S. 145, 194, 88 S.Ct. 1444, 20
L.Ed.2d 491, 522 (1968), does not apply to state trials that took
place before the decision in Duncan, as petitioner's trial did. De
Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308
(1968). Accordingly, we turn now to the commands of equal
protection and of due process.

II

This Court has never before considered a white defendant's
challenge to the exclusion of Negroes from jury service.4 The
essence of petitioner's claim is this:

4

Page 497

that the tribunals that indicted and convicted him were
constituted in a manner that is prohibited by the Constitution and
by statute; that the impact of that error on any individual trial
is unascertainable; and that consequently any indictment or
conviction returned by such tribunals must be set aside.5

There can be no doubt that, if petitioner's allegations are
true, both tribunals involved in this case were illegally
constituted. He alleges that Negroes were systematically excluded
from both the grand jury and the petit jury. This Court has
repeatedly held that the Constitution prohibits such selection
practices, with respect to the grand jury,6 the petit jury,7 or
both.8 Moreover, Con-

5

Page 498

gress has made it a crime for a public official to exclude anyone
from a grand or petit jury on the basis of race, 18 U.S.C. § 243,
and this Court upheld the statute, approving the congressional
determination that such exclusion would violate the express
prohibitions of the Equal Protection Clause. Ex parte Virginia,
100 U.S. 339, 25 L.Ed. 676 (1880). The crime, and the
unconstitutional state action, occur whether the defendant is
white or Negro, whether he is acquitted or convicted. In short,
when a grand or petit jury has been selected on an impermissible
basis, the existence of a constitutional violation does not depend
on the circumstances of the person making the claim.

It is a separate question, however, whether petitioner is
entitled to the relief he seeks on the basis of that
constitutional violation. Respondent argues that even if the grand
and petit juries were unconstitutionally selected, petitioner is
not entitled to relief on that account because he has not shown
how he was harmed by the error. It is argued that a Negro
defendant's right to challenge the exclusion of Negroes from jury
service rests on a presumption that a jury so constituted will be
prejudiced against him; that no such presumption is available to a
white defendant; and consequently that a white defendant must
introduce affirmative evidence of actual harm in order to
establish a basis for relief.

That argument takes too narrow a view of the kinds of harm
that flow from discrimination in jury selection. The exclusion of
Negroes from jury service, like the arbitrary exclusion of any
other well-defined class of citizens, offends a number of related
constitutional values.

In Strauder v. West Virginia, 100 U.S. 303, 308—309 (1880),
this Court considered the question from the point

6

Page 499

of view of the Negro defendant's right of equal protection of the
laws. Strauder was part of a landmark trilogy of cases, in which
this Court first dealt with the problem of racial discrimination
in jury selection. In Strauder itself, a Negro defendant sought to
remove his criminal trial to the federal courts, pursuant to
statute, on the ground that Negroes were excluded by law from the
grand and petit juries in the state courts; the Court upheld his
claim. In Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880), a
Negro defendant sought removal on the ground that there were in
fact no Negroes in the venire from which his jury was drawn; the
Court held that, without more, his claim did not come within the
precise terms of the removal statute. Finally, in Ex parte
Virginia, 100 U.S. 339 (1880), a state judge challenged the
statute under which he was convicted for the federal crime of
excluding Negroes from state grand and petit juries; the Court
upheld the statute as a valid means of enforcing the Equal
Protection Clause. Because each of these three cases was amenable
to decision on the narrow basis of an analysis of the Negro
defendant's right to equal protection, the Court brought all three
under that single analytical umbrella.

But even in 1880 the Court recognized that other
constitutional values were implicated. In Strauder, the Court
observed that the exclusion of Negroes from jury service injures
not only defendants, but also other members of the excluded class:
it denies the class of potential jurors the 'privilege of
participating equally . . . in the administration of justice,' 100
U.S., at 308, and it stigmatizes the whole class, even those who
do not wish to participate, by declaring them unfit for jury
service and thereby putting 'a brand upon them, affixed by law, an
assertion of their inferiority.' Ibid. It is now clear that
injunctive relief is available to vindicate these interests of the
excluded jurors and the stigmatized class.

7

Page 500

Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct.
518, 24 L.Ed.2d 549 (1970); Turner v. Fouche, 396 U.S. 346, 90
S.Ct. 532, 24 L.Ed.2d 567 (1970); White v. Crook, 251 F.Supp. 401
(DCMD Ala.1966).

Moreover, the Court has also recognized that the exclusion of
a discernible class from jury service injures not only those
defendants who belong to the excluded class, but other defendants
as well, in that it destroys the possibility that the jury will
reflect a representative cross section of the community. In
Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446
(1970), we sought to delineate some of the essential features of
the jury that is guaranteed, in certain circumstances, by the
Sixth Amendment. We concluded that it comprehends, inter alia, 'a
fair possibility for obtaining a representative cross-section of
the community.' 399 U.S., at 100, 90 S.Ct., at 1906.9 Thus if the
Sixth Amendment were applicable here, and petitioner were
challenging a post-Duncan petit jury, he would clearly have
standing to challenge the systematic exclusion of any identifiable
group from jury service.10

8

Page 501

The precise question in this case, then, is whether a State
may subject a defendant to indictment and trial by grand and petit
juries that are plainly illegal in their composition, and leave
the defendant without recourse on the ground that he had in any
event no right to a grand or petit jury at all. We conclude, for
reasons that follow, that to do so denies the defendant due
process of law.

III

'A fair trial in a fair tribunal is a basic requirement of
due process.' In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623,
625, 99 L.Ed. 942 (1955). The due process right to a competent and
impartial tribunal is quite separate from the right to any
particular form of proceeding. Due process requires a competent
and impartial tribunal in administrative hearings, Goldberg v.
Kelly, 397 U.S. 254, 271, 90 S.Ct. 1011, 1022, 25 L.Ed.2d 287
(1970), and in trials to a judge, Tumey v. Ohio, 273 U.S. 510, 47
S.Ct. 437, 71 L.Ed. 749 (1927). Similarly, if a State chooses,
quite apart from constitutional compulsion, to use a grand or
petit jury, due process imposes limitations on the composition of
that jury.

Long before this Court held that the Constitution imposes the
requirement of jury trial on the States, it was well established
that the Due Process Clause protects a defendant from jurors who
are actually incapable of rendering an impartial verdict, based on
the evidence and the law. Thus a defendant cannot, consistent with
due process, be subjected to trial by an insane juror, Jordan v.
Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038
(1912), by jurors who are intimidated by the threat of mob
violence, Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed.
543 (1923), or by jurors who

9

Page 502

have formed a fixed opinion about the case from newspaper
publicity, Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d
751 (1961).

Moreover, even if there is no showing of actual bias in the
tribunal, this Court has held that due process is denied by
circumstances that create the likelihood or the appearance of
bias. This rule, too, was well established long before the right
to jury trial was made applicable in state trials, and does not
depend on it. Thus it has been invoked in trials to a judge, e.g.,
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); In
re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955);
Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d
532 (1971); and in pre-Duncan state jury trials, e.g., Turner v.
Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965);
Estes v. Texas, 381 U.S. 532, 550, 85 S.Ct. 1628, 1636, 14 L.Ed.2d
543 (1965). In Tumey v. Ohio, supra, this Court held that a judge
could not, consistent with due process, try a case when he had a
financial stake in the outcome, notwithstanding the possibility
that he might resist the temptation to be influenced by that
interest. And in Turner v. Louisiana, supra, the Court held that a
jury could not, consistent with due process, try a case after it
had been placed in the protective custody of the principal
prosecution witnesses, notwithstanding the possibility that the
jurors might not be influenced by the association. As this Court
said in In re Murchison, supra, '(f)airness of course requires an
absence of actual bias in the trial of cases. But our system of
law has always endeavored to prevent even the probability of
unfairness.' 349 U.S., at 136, 75 S.Ct. at 625.

These principles compel the conclusion that a State cannot,
consistent with due process, subject a defendant to indictment or
trial by a jury that has been selected in an arbitrary and
discriminatory manner, in violation of the Constitution and laws
of the United States. Illegal and unconstitutional jury selection
procedures cast doubt on the integrity of the whole judicial
process.

10

Page 503

They create the appearance of bias in the decision of individual
cases, and they increase the risk of actual bias as well.

If it were possible to say with confidence that the risk of
bias resulting from the arbitrary action involved here is confined
to cases involving Negro defendants,11 then perhaps the right to
challenge the tribunal on that ground could be similarly confined.
The case of the white defendant might then be thought to present a
species of harmless error.

But the exclusion from jury service of a substantial and
identifiable class of citizens has a potential impact that is too
subtle and too pervasive to admit of confinement to particular
issues or particular cases. First, if we assume that the exclusion
of Negroes affects the fairness of the jury only with respect to
issues presenting a clear opportunity for the operation of race
prejudice, that assumption does not provide a workable guide for
decision in particular cases. For the opportunity to appeal to
race prejudice is latent in a vast range of issues, cutting across
the entire fabric of our society.

Moreover, we are unwilling to make the assumption that the
exclusion of Negroes has relevance only for issues involving race.
When any large and identifiable segment of the community is
excluded from jury service, the effect is to remove from the jury
room qualities of human nature and varieties of human experience,
the range of which is unknown and perhaps unknowable. It is not
necessary to assume that the excluded group will consistently vote
as a class in order to conclude, as we do, that its exclusion
deprives the jury of a

11

Page 504

perspective on human events that may have unsuspected importance
in any case that may be presented.12

It is in the nature of the practices here challenged that
proof of actual harm, or lack of harm, is virtually impossible to
adduce. For there is no way to determine what jury would have been
selected under a constitutionally valid selection system, or how
that jury would have decided the case. Consequently, it is
necessary to decide on principle which side shall suffer the
consequences of unavoidable uncertainty. See Speiser v. Randall,
357 U.S. 513, 525—526, 78 S.Ct. 1332, 1341—1342, 2 L.Ed.2d 1460
(1958); In re Winship, 397 U.S. 358, 370—373, 90 S.Ct. 1068, 1075
1077, 25 L.Ed.2d 368 (1970) (Harlan, J., concurring). In light of
the great potential for harm latent in an unconstitutional
jury-selection system,13 and the strong interest of the criminal
defendant in avoiding that harm, any doubt should be resolved in
favor of giving the opportunity for challenging the jury to too
many defendants, rather than giving it to too few.

Accordingly, we hold that, whatever his race, a criminal
defendant has standing to challenge the system used to select his
grand or petit jury, on the ground that it arbitrarily excludes
from service the members of any race, and thereby denies him due
process of law. This certainly is true in this case, where the
claim is that Negroes were systematically excluded from jury
service.

12

Page 505

For Congress has made such exclusion a crime. 18 U.S.C. § 243.

IV

Having resolved the question of standing, we turn briefly to
the further disposition of this case. There is, of course, no
question here of justifying the system under attack. For whatever
may be the law with regard to other exclusions from jury service,
it is clear beyond all doubt that the exclusion of Negroes cannot
pass constitutional muster. Accordingly, if petitioner's
allegations are correct, and Negroes were systematically excluded
from his grand and petit juries, then he was indicted and
convicted by tribunals that fail to satisfy the elementary
requirements of due process, and neither the indictment nor the
conviction can stand. Since he was precluded from proving the
facts alleged in support of his claim, the judgment must be
reversed and the case remanded for further proceedings consistent
with this opinion.

Reversed and remanded.

djQ Mr. Justice WHITE, with whom Mr. Justice BRENNAN and Mr.
Justice POWELL join, concurring in the judgment.

Since March 1, 1875, the criminal laws of the United States
have contained a proscription to the following effect:

'No citizen possessing all other qualifications which are or
may be prescribed by law shall be disqualified for service as
grand or petit juror in any court of the United States, or of
any State on account of race, color, or previous condition of
servitude . . .'

By this unambiguous provision, now contained in 18 U.S.C. §
243, Congress put cases involving exclusions

13

Page 506

from jury service on grounds of race in a class by themselves.
'For us the majestic generalities of the Fourteenth Amendment are
thus reduced to a concrete statutory command when cases involve
race or color which is wanting in every other case of alleged
discrimination.' Fay v. New York, 332 U.S. 261, 282—283, 67 S.Ct.
1613, 1624, 91 L.Ed. 2043 (1947).

The consequence is that where jury commissioners disqualify
citizens on the grounds of race, they fail 'to perform their
constitutional duty—recognized by § 4 of the Civil Rights Act of
March 1, 1875 . . . and fully established since the decision in
1881 of Neal v. Delaware . . . not to pursue a course of conduct
in the administration of their office which would operate to
discriminate in the selection of jurors on racial grounds.' Hill
v. Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559
(1942). Thus, 'no State is at liberty to impose upon one charged
with crime a discrimination in its trial procedure which the
Constitution, and an Act of Congress passed pursuant to the
Constitution, alike forbid. . . . (I)t is our duty as well as the
State's to see to it that throughout the procedure for bringing
him to justice he shall enjoy the protection which the
Constitution guarantees. Where, as in this case, timely objection
has laid bare a discrimination in the selection of grand jurors,
the conviction cannot stand because the Constitution prohibits the
procedure by which it was obtained.' Id., at 406, 62 S.Ct. at
1162.

It is true that the defendant in Hill was a Negro and
petitioner here is a white man. It is also true that there is no
case in this Court setting aside a conviction for arbitrary
exclusions of a class of citizens from jury service where the
defendant was not a member of the excluded class. I also recognize
that, as in this case, the courts of appeals, reflecting the
generally accepted constitutional view, have rejected claims such
as petitioner presents here. For me, however, the rationale and
operative language of Hill v. Texas suggest a broader

14

Page 507

sweep; and I would implement the strong statutory policy of § 243,
which reflects the central concern of the Fourteenth Amendment
with racial discrimination, by permitting petitioner to challenge
his conviction on the grounds that Negroes were arbitrarily
excluded from the grand jury that indicted him. This is the better
view, and it is time that we now recognized it in this case and as
the standard governing criminal proceedings instituted hereafter.
Hence, I join the judgment of the Court.

djQ Mr. Chief Justice BURGER, with whom Mr. Justice BLACKMUN and
Mr. Justice REHNQUIST join, dissenting.

There is no longer any question, of course, that persons may
not be excluded from juries on account of race. Such exclusions
are plainly unlawful and deserving of condemnation. That, however,
is not the issue before us. The real issue is whether such
illegality necessarily voids a criminal conviction, absent any
demonstration of prejudice, or basis for presuming prejudice, to
the accused.

Petitioner was indicted for the offense of burglary on June
6, 1966, and thereafter convicted. The conviction was reversed on
direct appeal, and the case was remanded for a new trial.
Petitioner was retried on December 8, 1966, was found guilty, and
was sentenced to 10 years' imprisonment. Petitioner is not a Negro
and the record in no way suggests that race was relevant in the
proceedings against him. At trial, petitioner made no challenge to
the method of selection of the grand and petit juries, and he made
no challenge to the array of the petit jury. In his appeal to the
Court of Appeals of Georgia, petitioner still made no claim
addressed to the method of selection of the grand and petit
juries. His conviction was affirmed.

15

Page 508

Seven months after his trial, petitioner filed a writ of
habeas corpus in the United States District Court, asserting for
the first time that Negroes were systematically excluded from the
grand and petit juries. If petitioner's allegations are true, then
the officials responsible for the jury selection acted in
violation of the Constitution, denying potential Negro jurors the
equal opportunity to participate in the administration of justice.
Strauder v. West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880).
Moreover, if petitioner's allegations are true, the responsible
officials are subject to criminal penalties. 18 U.S.C. § 243.
However, in order for petitioner's conviction to be set aside, it
is not enough to show merely that there has been some
unconstitutional or unlawful action at the trial level. It must be
established that petitioner's conviction has resulted from the
denial of federally secured rights properly asserted by him. See
Alderman v. United States, 394 U.S. 165, 171—174, 89 S.Ct. 961,
965—967, 22 L.Ed.2d 176 (1969); cf. Jones v. United States, 362
U.S. 257, 261, 80 S.Ct. 725, 731, 4 L.Ed.2d 697 (1960).

The opinions in support of the majority position do not hold
that if petitioner's allegations are true, he has been denied the
equal protection of the laws. The Court has held in a long line of
cases that a Negro defendant is denied equal protection by the
systematic exclusion of Negroes from jury service. See, e.g.,
Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599
(1967); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed.
1244 (1953); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79
L.Ed. 1074 (1935); Carter v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44
L.Ed. 839 (1900); Strauder v. West Virginia, 100 U.S. 303, 25
L.Ed. 664 (1880). These decisions have been predicated from the
beginning on the judicially noticeable fact 'that prejudices often
exist against particular classes in the community, which sway the
judgment of jurors, and which, therefore, operate in some cases to
deny to persons of those classes the full enjoyment of that
protection which others enjoy.'

16

Page 509

Strauder v. West Virginia, supra, at 309. See also Gibson v.
Mississippi, 162 U.S. 565, 581, 16 S.Ct. 904, 906, 40 L.Ed. 1075
(1896); Bush v. Kentucky, 107 U.S. 110, 117, 1 S.Ct. 625, 631, 27
L.Ed. 354 (1883); Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed.
567 (1881); Ex parte Virginia, 100 U.S. 339, 345, 25 L.Ed. 676
(1880). This presumption of prejudice derives from the fact that
the defendant is a member of the excluded class, but the Court has
never intimated that a defendant is the victim of unconstitutional
discrimination if he does not claim that members of his own race
have been excluded. See Alexander v. Louisiana, 405 U.S. 625, 633,
92 S.Ct. 1221, 1226, 31 L.Ed.2d 536 (1972).

While the opinion of Mr. Justice MARSHALL refrains from
relying on the Equal Protection clause, it concludes that if
petitioner's allegations are true, he has been denied due process
of law. The opinion seeks to equate petitioner's position with
that of a defendant who has been tried before a biased tribunal or
one lacking the indicia of impartiality. It has been held that an
accused is denied due process if the trier of fact is mentally
incompetent, Jordan v. Massachusetts, 225 U.S. 167, 32 S.Ct. 651,
56 L.Ed. 1038 (1912), has a personal interest in the outcome of
the proceedings, Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71
L.Ed. 749 (1927), has been subjected to pressures making a
dispassionate decision unlikely, Irvin v. Dowd, 366 U.S. 717, 81
S.Ct. 1639, 6 L.Ed.2d 751 (1961), Moore v. Dempsey, 261 U.S. 86,
43 S.Ct. 265, 67 L.Ed. 543 (1923), cf. Turner v. Louisiana, 379
U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), or has had direct
personal involvement with the events underlying a criminal
contempt charge. Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct.
499, 27 L.Ed.2d 532 (1971); In re Murchison, 349 U.S. 133, 75
S.Ct. 623, 99 L.Ed. 942 (1955). This case plainly falls in none of
those categories.

Although the prior cases have not required a showing that the
trier of fact was actually affected by prejudice in its
deliberations, in every case the circumstances were such as to
create a serious 'probability of unfairness.' In re Murchison, 349
U.S., at 136, 75 S.Ct. at 625. Recognizing this limitation, the
Court in Witherspoon v. Illinois, 391

17

Page 510

U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), found no denial of
due process where the determination of guilt had been entrusted to
a jury from which persons opposed to the death penalty had been
excluded. The Court rejected as 'tentative and fragmentary'
scientific evidence tending to show 'that jurors not opposed to
the death penalty tend to favor the prosecution in the
determination of guilt.' 391 U.S., at 517, 88 S.Ct. at 1774, 20
L.Ed.2d 776. The Court went on to state,

'We simply cannot conclude, either on the basis of the record
now before us or as a matter of judicial notice, that the
exclusion jurors opposed to capital punishment results in an
unrepresentative jury on the issue of guilt or substantially
increases the risk of conviction. In light of the presently
available information, we are not prepared to announce a per
se constitutional rule requiring the reversal of every
conviction returned by a jury selected as this one was.' 391
U.S., at 517—518, 88 S.Ct. at 1774, 20 L.Ed.2d 776.

See also Fay v. New York, 332 U.S. 261, 280—281, 67 S.Ct.
1613, 1623—1624, 91 L.Ed. 2043 (1947). Here three members of the
Court would establish such a per se rule without the benefit of
tentative, fragmentary, of any other kind of empirical data
indicating that all-white juries tend to be prejudiced against
white defendants in nonracial criminal poceedings.

The opinion of Mr. Justice MARSHALL seeks to magnify this
wholly speculative likelihood of prejudice by noting that the
effect of excluding 'any large and identifiable segment of the
community . . . is to remove from the jury room qualities of human
nature and varieties of human experience, the range of which is
unknown and perhaps unknowable,' and 'that its exclusion deprives
the jury of a perspective on human events that may have
unsuspected importance in any case that may be presented.' Ante,
at 503—504. I completely agree that juries should not be deprived
of the insights of the various

18

Page 511

segments of the community, for the 'common-sense judgment of a
jury,' referred to in Duncan v. Louisiana, 391 U.S. 145, 156, 88
S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968), is surely enriched when
all voices can be heard. But we are not here concerned with the
essential attributes of trial by jury. In fact, since petitioner
was tried two years before this Court's decision in Duncan, there
was no constitutional requirement that he be tried before a jury
at all. DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20
L.Ed.2d 1308 (1968). Had the State of Georgia proceeded to try
petitioner before a judge, I assume the Court would not find it a
denial ofdue process if the judge were not the embodiment of all
the 'qualities of human nature and varieties of human experience.'
I do not mean to minimize the importance of these values, but they
really have very little to do with the narrow question whether
petitioner was convicted by a prejudiced tribunal.

Nor do I believe that the illegality of the alleged exclusion
can be viewed as tipping the scales toward finding a denial of due
process. The question of a jury's bias or prejudice is totally
factual in nature. If the possibility of prejudice is too remote
or speculative to support a finding of unconstitutionality, a
different result cannot be justified by relying on the element of
illegality. The constitutional and statutory prohibition against
such conduct is extraneous to the due process question, for it in
no way renders the possibility of prejudice less remote or less
speculative. If this were a borderline case on the facts, it might
conceivably be appropriate to resolve the doubt against the State
due to its complicity in the alleged unlawful discrimination. But,
judging from all existing authority, this is not a close case at
all.

The opinion of Mr. Justice WHITE, concurring in the judgment,
as I read it, rests on the statutory prohibition against racially
exclusive juries found in 18 U.S.C. § 243. The opinion draws on
dictum in Hill v. Texas, 316 U.S.

19

Page 512

400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942), a case
involving a Negro defendant, as expressing the 'better view' that
§ 243 invalidates the conviction of any man tried before a jury
from which persons have been excluded on account of race.*

A closer look at the statute is warranted. From all
indications, § 243 was intended to serve two purposes: first, to
make explicit what was implicit in the Fourteenth Amendment, that
persons cannot be denied the right to serve on juries because of
their race; and second, to prevent racial exclusions from juries
by providing criminal penalties for persons violating the
statutory command. See Ex parte Virginia, 100 U.S. 339, 25 L.Ed.
676 (1880); Neal v. Delaware, 103 U.S. 370, 386, 26 L.Ed. 567
(1881). Insofar as the statute is declarative of rights secured by
the Equal Protection Clause, it provides no authority for reaching
a result that the Constitution itself does not require. No case
has ever held that § 243 confers extraconstitutional rights on
criminal defendants, and there is no support for the view that
Congress intended to confer such rights when it eancted this
legislation in 1875.

The opinion concurring in the judgment suggests that an
expansive reading of § 243 is appropriate to 'implement the strong
statutory policy' against the exclusion

20

Page 513

of persons from jury service on the basis of race. Under this
interpretation, the statute is viewed not so much as safeguarding
the rights of the white defendant, but as providing a prophylaxis
against discriminatory action in all cases, regardless of any harm
that might befall the accused. While Congress surely had the power
to implement the policies of the Fourteenth Amendment in this
manner, it chose instead to deter such violations of the
Fourteenth Amendment by imposing criminal sanctions. It has been
apparent, at least until recently, that such sanctions have not
satisfactorily served to deter. But it is not for this Court to
correct the inadequacies of a statutory enactment. Moreover, it
does nothing to promote adherence to the policies of the
Fourteenth Amendment to allow a criminal defendant who has made no
objection at trial and who has no credible claim of personal
prejudice to mount a post-conviction attack alleging that
discriminatory jury selection has taken place in the past.

1

The history of this litigation is long and complicated.
Petitioner was indicted on June 6, 1966. His first trial resulted
in a conviction that was reversed on Fourth Amendment grounds, 114
Ga.App. 595, 152 S.E.2d 647 (1966). A second trial, held on
December 8, 1966, resulted in the conviction challenged here,
which was affirmed, Peters v. State, 115 Ga.App. 743, 156 S.E.2d
195 (1967). Petitioner for the first time raised the claim of
discriminatory jury selection in a petition for federal habeas
corpus, which was summarily denied on July 5, 1967. The Court of
Appeals affirmed on the ground that petitioner had failed to
exhaust then-available state remedies with respect to his
otherwise highly colorable claim, Peters v. Rutledge, 397 F.2d
731, 735—741 (CA5 1968). Petitioner then filed a second petition
for federal habeas corpus on the same ground, alleging that
intervening state court decisions clearly foreclosed his claim in
the state courts. That petition was denied on the grounds (1) that
it was repetitious, (2) that petitioner had failed to exhaust, and
(3) that his claims were lacking in merit. App. 15. The Court of
Appeals again affirmed, rejecting the first two grounds and
resting entirely on the third, i.e., rejecting petitioner's
substantive claims. 441 F.2d 370 (1971). The exhaustion point thus
having been resolved in petitioner's favor below, the State quite
properly does not press it here.

2

See Brief for Appellee in Court of Appeals 28—43.

3

The jury lists were made up from the tax digests, which
were by law segregated according to race; moreover, the jury lists
contained a proportion of Negroes much smaller than the proportion
in the population or in the tax digests. The jury-selection system
of Muscogee County, Georgia, was explored in detail and struck
down as unconstitutional in Vanleeward v. Rutledge, 369 F.2d 584
(CA5 1966), contemporaneously with petitioner's trial. On
petitioner's first federal appeal, the Court of Appeals suggested,
though it did not hold, that the Vanleeward findings and
conclusions on this point should be regarded as conclusive with
respect to Peters, and thereby the expense and delay of a full
evidentiary hearing might be avoided, 397 F.2d, at 740.4 A number of state courts and lower federal courts have
imposed a 'same class' rule on challenges to discriminatory jury
selection, holding that the exclusion of a class from jury service
is subject to challenge only by a member of the excluded class.
Only a few courts have rejected the rule; e.g., Allen v. State,
110 Ga.App. 56, 137 S.E.2d 711 (1964) (not followed by other
panels of same court); State v. Madison 240 Md. 265, 213 A.2d 880
(1965). The cases are collected, and criticized, in Note, The
Defendant's Challenge to a Racial Criterion in Jury Selection, 74
Yale L.J. 919 (1965). See also Note, The Congress, The Court and
Jury Selection, 52 Va.L.Rev. 1069 (1966). This Court avoided
passing on the 'same-class' rule in Fay v. New York, 332 U.S. 261,
289—290, 67 S.Ct. 1613, 1628—1629, 91 L.Ed. 2043 (1947), and has
never since then approved or rejected it.

5

He also claims his own rights under the Equal Protection
Clause have been violated, a claim we need not consider in light
of our disposition.6 Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31
L.Ed.2d 536 (1972); Arnold v. North Carolina, 376 U.S. 773, 84
S.Ct. 153, 11 L.Ed.2d 110 (1964); Eubanks v. Louisiana, 356 U.S.
584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350
U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Cassell v. Texas, 339
U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Hill v. Texas, 316
U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311
U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana,
306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Rogers v.
Alabama, 192 U.S. 226, 24 S.Ct. 257, 48 L.Ed. 417 (1904); Carter
v. Texas, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839 (1900); Bush v.
Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1883).7 Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed.
1244 (1953); Hollins v. Oklahoma, 295 U.S. 394, 55 S.Ct. 784, 79
L.Ed. 1500 (1935).8 Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d
634 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d
25 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17
L.Ed.2d 599 (1967); Coleman v. Alabama, 377 U.S. 129, 84 S.Ct.
1152, 12 L.Ed.2d 190 (1964); Patton v. Mississippi, 332 U.S. 463,
68 S.Ct. 184, 92 L.Ed. 76 (1947); Hale v. Kentucky, 303 U.S. 613,
58 S.Ct. 753, 82 L.Ed. 1050 (1938); Norris v. Alabama, 294 U.S.
587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Martin v. Texas, 200 U.S.
316, 26 S.Ct. 338, 50 L.Ed. 497 (1906); Neal v. Delaware, 103 U.S.
370, 26 L.Ed. 567 (1881); Strauder v. West Virginia, 100 U.S. 303,
25 L.Ed. 664 (1880).

9

The principle of the representative jury was first
articulated by this Court as a requirement of equal protection, in
cases vindicating the right of a Negro defendant to challenge the
systematic exclusion of Negroes from his grand and petit juries.
E.g., Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85
L.Ed. 84 (1940). Subsequently, in the exercise of its supervisory
power over federal courts, this Court extended the principle, to
permit any defendant to challenge the arbitrary exclusion from
jury service of his own or any other class. E.g., Glasser v.
United States, 315 U.S. 60, 83—87, 62 S.Ct. 457, 470—473, 86 L.Ed.
680 (1942); Thiel v. Southern Pacific Co., 328 U.S. 217, 220, 66
S.Ct. 984, 985, 90 L.Ed. 1181 (1946); Ballard v. United States,
329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Finally it
emerged as an aspect of the constitutional right to jury trial in
Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905, 26
L.Ed.2d 446 (1970).10 It is of course a separate question whether his challenge
would prevail, i.e., whether the exclusion might be found to have
sufficient justification. See Rawlins v. Georgia, 201 U.S. 638,
640, 26 S.Ct. 560, 561, 50 L.Ed. 899 (1906), holding that a State
may exclude certain occupational categories from jury service 'on
the bona fide ground that it (is) for the good of the community
that their regular work should not be interrupted.' We have no
occasion here to consider what interests might justify an
exclusion, or what standard should be applied, since the only
question in this case is not the validity of an exclusion but
simply standing to challenge it.

11

Or the class may be expanded slightly to include white
civil rights workers, see Allen v. State, 110 Ga.App. 56, 62, 137
S.E.2d 711, 715 (1964) (alternative holding).

12

In rejecting, for the federal courts, the exclusion of
women from jury service this Court made the following
observations, which are equally relevant to the exclusion of other
discernible groups: 'The truth is that the two sexes are not
fungible; a community made up exclusively of one is different from
a community composed of both; the subtle interplay of influence
one on the other is among the imponderables. To insulate the
courtroom from either may not in a given case make an iota of
difference. Yet a flavor, a distinct quality is lost if either sex
is excluded.' Ballard v. United States, 329 U.S. 187, 193—194, 67
S.Ct. 261, 264, 91 L.Ed. 181 (1946) (footnote omitted).13 Hill v. Texas, 316 U.S. 400, 406, 62 S.Ct. 1159, 1162, 86
L.Ed. 1559 (1942).

*

The passage quoted from Hill v. Texas, supra, even if taken
at face value, does not mandate reversal in this case. It is
expressly limited to the case where 'timely objection has laid
bare a discrimination in the selection of grand jurors . . ..' 316
U.S., at 406, 62 S.Ct. at 1162. As indicated earlier, petitioner
first made his allegations seven months after his trial. Moreover,
assuming, arguendo, that there is a statutory right not to be
tried before a racially exclusive jury, it is not clear to me why
petitioner's failure to raise the matter in the state courts
should not preclude him from raising it on a federal habeas
attack. The Court has spoken of a presumption against the waiver
of fundamental, constitutional rights, see, e.g., Johnson v.
Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461
(1938), but has never intimated that a similar presumption should
apply with respect to statutory rights.